KELVIN H. KEITH, PETITIONER V. EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION, ET AL.
No. 89-1835
In The Supreme Court Of The United States
October Term, 1989
On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Ninth Circuit
Brief For The Equal Employment Opportunity Commission In Opposition
TABLE OF CONTENTS
Question Presented
Opinions below
Jurisdiction
Statement
Argument
Conclusion
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1-66) is reported at
897 F.2d 1499. The opinion of the district court (Pet. App. 67-135)
is not yet reported.
JURISDICTION
The judgment of the court of appeals was entered on March 2, 1990.
The petition for a writ of certiorari was filed on May 25, 1990. The
jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
QUESTION PRESENTED
Whether a consent decree settling a lawsuit under the Age
Discrimination in Employment Act, 29 U.S.C. 626 et seq., brought by
the Equal Employment Opportunity Commission pursuant to Sections 16(c)
and 17 of the Fair Labor Standards Act, 29 U.S.C. 216(c) and 217,
violated due process because it did not provide relief to an
individual within the class of persons aggrieved by the challenged
practice who received but failed to respond to a notice requesting
that he contact the Equal Employment Opportunity Commission if he was
interested in obtaining relief.
STATEMENT
1. The Equal Employment Opportunity Commission (EEOC) filed this
lawsuit on September 15, 1981, under Sections 16(c) and 17 of the Fair
Labor Standards Act (FLSA), 29 U.S.C. 216(c) and 217, alleging that
Pan American World Airways, Inc. (Pan Am) violated Section 4(a) of the
Age Discrimination in Employment Act (ADEA), 29 U.S.C. 623(a), by
refusing to permit pilots who wished to work beyond age 60 as flight
engineers to do so. /1/ In its complaint, the EEOC sought relief for
two named individuals and for all other pilots who were forced to
retire on or after September 15, 1978, but who would have continued
working as flight engineers past age 60 but for Pan Am's policy.
Pan Am provided the EEOC the names of 514 pilots who retired after
September 15, 1978, with mailing addresses for 445 of them, including
petitioner. Pet. App. 13. In June 1982, the EEOC mailed a letter to
all pilots for whom Pan Am had provided an address (including
petitioner), advising them of the lawsuit, requesting that they
contact the EEOC as soon as possible if they had been affected by Pan
Am's policy, and stating that the EEOC would assume they had not been
injured by the Pan Am policy if they did not respond. Id. at 13-14.
Although notice letters were not mailed to the 69 individuals for whom
Pan Am had provided no addresses, information regarding the lawsuit
was distributed to pilots and former pilots in several other forms.
Id. at 17-20, 95-96. Based on responses to the notice and other
publicity, the EEOC filed a statement with the district court in
September 1982, naming 93 retired pilots for whom relief was sought.
Petitioner, who retired on June 30, 1981, was not named by the EEOC
because he had not responded to the notice. Id. at 15. Other
claimants were added later as additional pilots contacted the EEOC.
Id. at 15 n.1.
2. After rejecting two earlier settlement agreements, /2/ the
district court granted partial summary judgment to the EEOC. The
court held that the EEOC established that Pan Am's practices
constituted a prima facie violation of the ADEA and that Pan Am would
be permitted at trial to offer only the defense that the practices
were based on reasonable factors other than age. Pet. App. 70-71.
Following two months of trial, the parties arrived at a settlement
agreement and proposed consent decree. Id. at 71.
The decree provides an award of $17.2 million to be shared by a
maximum of 106 named claimants -- 91 who were named in the fifth
amended complaint and 15 who retired after that complaint was filed.
The decree also provides that Pan Am will allow pilots to continue
working as flight engineers after they reach age 60. Paragraph 17
states that, upon entry of the decree, "this action is hereby
dismissed with prejudice as to all persons listed in (the attachments
to the decree) and as to any other pilots who would have remained in
Pan Am's employment but for Pan Am's refusal prior to February 1,
1988, to employ that person after he reached the age of 60" (emphasis
omitted). Pet. App. 25-26. /3/
Nine former pilots who were not eligible for relief under the
decree objected to its entry. /4/ Eight of them, including
petitioner, asserted that, although they retired within the period
covered by this lawsuit, they were never notified and given an
opportunity to participate in the litigation. /5/ Pet. App. 68.
Petitioner stated that he did not learn of this lawsuit until the
settlement was publicized in February 1988. Id. at 88.
After a hearing, the district court approved the consent decree.
The court held that, to the extent the decree deprives the objectors
of any otherwise viable right under the ADEA, /6/ each objector had
constitutionally sufficient notice of the lawsuit long before the
settlement was reached. Pet. App. 118-127. The court specifically
found that, despite his protestations to the contrary, petitioner had
received the notice sent by the EEOC at the outset of this litigation.
Id. at 123-127. Petitioner and one other objector appealed from that
ruling. Id. at 30.
3. The court of appeals affirmed the district court's decision.
The court held that, while a consent decree cannot prejudice the
rights of nonparties who fail to consent to it, in this case "the
consent decree does not in fact prejudice any rights (petitioner)
ha(s) under the ADEA." Pet. App. 45-47. Under the ADEA's enforcement
scheme, the court noted, petitioner's right to file a private ADEA
action against Pan Am terminated in September 1981 when the EEOC filed
suit on his behalf, and the language in the consent decree which
purports to bar petitioner and other similarly situated persons from
bringing private ADEA suits against Pan Am is, therefore, "mere
surplusage." Id. at 47-50.
The court also held that the manner in which the EEOC conducted
this enforcement action did not violate petitioner's due process
rights. Pet. App. 52. The court held that the EEOC's decision to
identify the individuals for whom it would seek relief on the basis of
responses to the notice it sent did not violate due process. Id. at
55. Rejecting the argument that the EEOC's notice was
constitutionally inadequate because it did not explicitly state that
this lawsuit extinguished petitioner's private suit rights, the court
held that the EEOC had no constitutional obligation to inform
petitioner of the legal consequences of the filing of this suit. Id.
at 60. The court expressly refused to overturn the district court's
finding that petitioner had received the EEOC's notice and that he had
actual knowledge of the lawsuit. Id. at 55.
ARGUMENT
The decision of the court of appeals is correct and does not
conflict with the decision of any other court. Thus, no further
review is warranted.
1. The only question properly before this Court is whether the
consent decree violates the Due Process Clause of the Fifth Amendment
because it did not provide relief to petitioner, an individual who was
within the class of persons on whose behalf the EEOC sought relief but
who failed to respond to a notice requesting that he contact the EEOC
if he was interested in obtaining relief. In light of the district
court's undisturbed finding that petitioner received the EEOC's letter
notifying potential claimants of this lawsuit and of their need to
contact the EEOC to protect their interests in it (Pet. App. 121-127),
/7/ it must be concluded that petitioner had notice of the lawsuit and
the opportunity to become a member of the class that would be
benefitted. Therefore, the petition does not present the question
whether the Due Process Clause would have been offended if the EEOC
had not included in the settlement individuals who had no notice of
the lawsuit and no opportunity to share in the settlement.
Petitioner apparently does not renew his claim that he was not
notified of the lawsuit but, instead, argues repeatedly that other
former pilots did not receive notice. Pet. 35-36, 40, 42-46.
Petitioner, however, has no standing to present the claims of others
not before this Court. Valley Forge Christian College v. Americans
United for Separation of Church & State, Inc., 454 U.S. 464, 474
(1982) (litigant "must assert his own legal rights and interests, and
cannot rest his claim to relief on the legal rights or interests of
third parties"). See also Warth v. Seldin, 422 U.S. 490, 499 (1975);
Lerner v. Casey, 357 U.S. 468, 473 (1958) (where employee's dismissal
resulted from his own lack of responsiveness and failure to pursue
administrative remedy, he had no standing to complain of procedural
defects in statutory scheme).
2. Petitioner argues that he was denied due process because the
consent decree deprives him of statutory rights under the ADEA without
his consent. Pet. 19. However, the court of appeals correctly held
that the consent decree did not prejudice petitioner's rights.
Therefore, his lack of consent is irrelevant. As the court held, it
was the filing of this action by the EEOC under Section 16(c) and 17
of the FLSA, /8/ and not the consent decree, which extinguished
petitioner's right to bring a private ADEA action.
As a matter of statutory construction, the court's ruling is
unassailable. Private ADEA litigation is authorized under both
Section 7(c)(1) and Section 7(b) of the ADEA, which incorporates
Section 16(b) of the FLSA. As the court of appeals observed (Pet.
App. 37-38), this private enforcement right is expressly limited; it
expires upon the commencement of an EEOC enforcement action. See
Section 7(c)(1) of the ADEA, 29 U.S.C. 626(c)(1) (the right of any
person to bring a private action "shall terminate upon the
commencement of an action by the (EEOC) to enforce the right of such
employee under this chapter") (emphasis added); Section 16(b) of the
FLSA, 29 U.S.C. 216(b) (the right of any employee to bring an action,
or to become a party plaintiff in an action, "shall terminate upon the
filing of a complaint by the (EEOC) in an action under this
subsection"). Petitioner does not challenge this plain reading of the
statutory language, and every court of appeals that has addressed the
question has held that the filing of the EEOC's complaint terminates
the right to sue of potential claimants who have not initiated private
ADEA actions. See Dunlop v. Pan American World Airways, Inc., 672
F.2d 1044, 1049 n.6 (2d Cir. 1982); Donovan v. University of Texas,
643 F.2d 1201, 1207-1208 (5th Cir. 1981); EEOC v. Gilbarco, Inc., 615
F.2d 985, 990 (4th Cir. 1980). Accordingly, the court of appeals
correctly held that, at the time of the consent decree, petitioner had
no right to file suit under the ADEA that could have been prejudiced
by the consent decree, since that right had been extinguished years
earlier when the EEOC filed suit.
For this reason, petitioner's reliance on Martin v. Wilks, 109 S.
Ct. 2180 (1989), to argue that his rights under the ADEA cannot be
extinguished by the consent decree because he was not a party to the
EEOC's litigation (Pet. 27-30), is misplaced. In Wilks, the Court
reiterated the general rule that "(a) judgment or decree among parties
to a lawsuit resolves issues as among them, but it does not conclude
the rights of strangers to those proceedings." 109 S. Ct. 2184. Wilks
does not control in this case because, as we discussed above, it was
not the consent decree that extinguished petitioner's right to file an
ADEA action; it was the commencement of this action by the EEOC.
In Wilks, this Court noted that, under some statutory provisions,
the filing of an action by one party may extinguish the rights of
nonparties to bring a subsequent action without their consent. This
Court stated:
(W)here a special remedial scheme exists expressly foreclosing
successive litigation by nonlitigants, * * * legal proceedings
may terminate preexisting rights if the scheme is otherwise
consistent with due process. See NLRB v. Bildisco & Bildisco,
465 U.S. 513, 529-530 n.10 ((1984)) ("proof of claim must be
presented to the Bankruptcy Court . . . or be lost"); Tulsa
Professional Collection Services, Inc. v. Pope, 485 U.S. (478)
(1988) (nonclaim statute terminating unsubmitted claims against
the estate.)
109 S. Ct. 2184 n.2. Congress adopted such a "special remedial
scheme" in the ADEA, terminating the rights of nonparties to file suit
upon the commencement of an enforcement action by the EEOC. /9/ As
the court of appeals recognized, this limitation on private
enforcement was intended by Congress "to relieve the courts and
employers of the burden of litigating a multiplicity of suits based on
the same violations of the act by an employer." Pet. App. 42 (quoting
S. Rep. No. 145, 87th Cong., 1st Sess. 39 (1961)). Therefore, the
court of appeals' holding that petitioner's right to file an ADEA
action was terminated without his consent when the EEOC filed this
action is consistent with this Court's decision in Martin v. Wilks.
3. The court of appeals also correctly ruled that, assuming
petitioner had a protected legal interest in the conduct of the EEOC's
action against Pan Am, the procedures followed in this case did not
violate his due process rights. Initially, as discussed above, since
petitioner received actual notice of the lawsuit and failed to
respond, the question of whether it would violate due process to
exclude from a lawsuit potential victims of a discriminatory policy
who were not notified is not properly before this Court. /10/ As to
the issue that is properly presented by petitioner, the court of
appeals correctly held that the notice sent to petitioner by the EEOC
was constitutionally sufficient. Constitutionally sufficient notice
need only contain information reasonably necessary under the
circumstances to permit an individual to protect his rights. Mullane
v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314-315 (1950).
The EEOC letter informed petitioner that this lawsuit had been filed,
provided him an opportunity to contact the EEOC, and explained that
the EEOC would assume he had not been injured by the challenged
employment practice if he did not respond.
In rejecting petitioner's argument that the notice was deficient
because it did not explain that his private right of action had been
terminated, the court of appeals correctly held that the EEOC had no
constitutional obligation to inform petitioner of the legal
consequences of its commencement of this lawsuit. Pet. App. 59-60.
As the court explained, the termination of his private right of action
occurred under Section 7(c) of the ADEA and Section 16(b) of the FLSA
immediately upon the commencement of this action. Pet. App. 59. The
bar to petitioner's lawsuit was the result of a self-executing
provision of law, much like a statute of limitations. This Court has
held that such self-executing bars to litigation do not give rise to a
constitutional right to notice of the rule's operation. Texaco, Inc.
v. Short, 454 U.S. 516, 533-538 (1982) (statute of limitations
providing for lapse of property right unless owner files statement of
claim).
Finally, contrary to petitioner's suggestion (Pet. 27-28), this
case does not present the question whether the EEOC can arbitrarily
and capriciously exclude from a settlement known claimants whose
private rights to sue have been terminated by a governmental
enforcement action. In this case, the EEOC relied primarily upon
responses of potential claimants who were sent notice of the lawsuit
in order to identify which individual victims of discrimination
qualified for the relief sought. However, the EEOC also included as
claimants other victims of Pan Am's policy who had filed either an
administrative charge of discrimination or a lawsuit under the ADEA.
Thus, had petitioner taken any steps to present his claim, either by
responding to the mailed notice, filing a charge with the EEOC (29
U.S.C. 626(d)), or filing suit within two or three years of his
retirement (29 U.S.C. 626(e)(1)), he would have shared in the
settlement. He cannot sit on the sidelines until the litigation is
terminated favorably, and then upset the settled expectations of the
claimants and the defendant by demanding a share of the recovery. See
Pet. App. 28-29, 98-99.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
KENNETH W. STARR
Solicitor General
DONALD R. LIVINGSTON
Acting General Counsel Equal Employment Opportunity Commission
JUNE 1990
/1/ Since 1964, the Federal Aviation Administration has prohibited
anyone over the age of 60 from serving as a commercial airline pilot.
Pet. App. 4.
/2/ See EEOC v. Pan American World Airways, 34 Fair Empl. Prac.
Cas. (BNA) 321 (N.D. Cal. 1984); EEOC v. Pan American World Airways,
Inc., 622 F. Supp. 633 (N.D. Cal. 1985), appeal dismissed, 796 F.2d
314 (9th Cir. 1986), cert. denied, 479 U.S. 1030 (1987).
/3/ The parties later executed a side letter providing that any
charges that had previously been filed with the EEOC and any ADEA
actions arising out of the subject matter of this action would be
merged into this lawsuit, and the claimants who instituted those
proceedings would share in the benefits provided by the decree. EEOC
Supp. C.A. R.E. 220-221. After a search by the EEOC, no such
additional claimants were found. Pet. App. 74.
/4/ In addition, one named claimant objected to the settlement's
silence on the tax status of monetary benefits. Pet. App. 78-83. He
did not appeal the district court's rejection of his suggestion that
the decree should be modified on this basis. Id. at 83.
/5/ The ninth objector, whose claim arose outside the limitations
period defined by the EEOC's lawsuit, argued that he should have been
included as a claimant. Pet. App. 128-132. The district court
rejected his objection (id. at 132), and no timely appeal was
perfected.
/6/ The district court observed that the EEOC's filing of this
enforcement action extinguished the rights of aggrieved employees to
file individual ADEA claims (Pet. App. 109), that the objectors had no
constitutionally protected interest in being included in the EEOC's
Section 17 action (Pet. App. 117), and that it was too late for the
EEOC to seek relief from them under Section 16(c) because the
limitations period had long since run on their claims. Pet. App. 116.
/7/ The district court specifically found that petitioner's correct
name and address appear on the mailing list provided by Pan Am, and
that the EEOC's letter to him was never returned as undeliverable.
Pet. App. 88. The court also found that a newsletter describing this
litigation, and inviting former pilots to contact the EEOC, was mailed
to petitioner at his correct address. Id. at 94.
/8/ Commission litigation is authorized under Section 7(b) of the
ADEA, 29 U.S.C. 626(b), which incorporates Sections 16(c) and 17 of
the FLSA, 29 U.S.C. 216(c) and 217.
/9/ By contrast, Title VII of the Civil Rights Act of 1964, 42
U.S.C. 2000e et seq., the statute under which Wilks arose, contains no
similar provision that terminates private suit rights when the EEOC
has filed suit.
/10/ Because petitioner received actual notice of the lawsuit, this
Court's decision in Hoffmann-La Roche, Inc., v. Sperling, 110 S. Ct.
482 (1989), is not relevant to the issue presented here. Moreover, in
Sperling this Court held that district courts have discretion to
authorize notice to potential claimants in a private action under the
ADEA. 110 S. Ct. at 486. Nothing in Sperling requires notice.